*1 Judge SMITH, J. JOSEPH Circuit America, UNITED STATES of (dissenting): Appellee, I dissent. my As indicated in dissent in United DRUMMOND, Nelson Cornelious today, Robinson, States v. I decided be- Appellant. requires lieve that Escobedo v. Illinois us No. Docket 28710. conviction, part to reverse this founded in agents Appeals Cone’s statements to the after United States Court arrest, Second Circuit. when had not been advised to counsel or his to re- Argued Jan. 1965. question main silent. There can be no Submitted to the in banc Court process but that the criminal had shifted May 26, 1965. investigatory accusatory from and had Decided Dec. upon focussed Cone. The marihuana had intercepted been and followed to the ad- They dressees. statements ac-

cusing detailing planned Cone and delivery Cone, thereupon carried out agents under the surveillance of the possession followed to Cone’s agreed place delivery. investiga- complete, agents tion was had learned shipped drug

that Cone had

Panama to himself at New York. With- rights out limitation of the and duties investigation continue others,

to the Escobedo involvement plain makes it that the use Cone self-incriminatory statements elicited purpose by

for that after be- investigation target came the arid

had indeed been arrested for crime and was without counsel is forbidden. Waterman, Anderson, Smith and requires The Constitution that his Judges, Circuit dissented. competently

to counsel be enforced unless waived—and there can be no serious

claim of waiver here. possible very

It is to read Escobedo

narrowly particular and confine toit its facts, Ibut submit that this does violence opinion’s explanation of the ra- holding

tionale of the and to the dissent- understanding

ers’ of what the Court’s

opinion Moreover, grudging meant. acquiescence only pro-

inch long litigation inch can uncertainty

and the delay steps to

enforcement officials and assuring pro-

improve promptness in development of al-

vision investigatory techniques.

ternative

would for new trial with Cone’s reverse arrest,

admissions after absence

counsel, excluded. *5 Martin, Jr., Atty. John S. Asst. U. S. (Robert Morgenthau, Atty., M. An- U. S. McEvoy, Jr.,

drew T. L. Broder- Vincent *6 ick, Attys.), appellee. Asst. U. for S. Marden, City, Orison York S. New (Anthony Marra, F. Charles Nelson Brower, Knake, Jr., P. B. Konrad New City), appellant. York Judge, LUMBARD, Before Chief and MOORE, FRIENDLY, WATERMAN, SMITH, KAUFMAN, and HAYS ANDERSON, Judges. Circuit Judge. KAUFMAN, Circuit appeal, mul On this which raises challenges tiple to of Nel the conviction conspiracy son Cornelious Drummond Act, Espionage to Federal we violate the upon trial are called to decide whether the wrongly in into court admitted evidence culpatory statements made the defend following during periods prior ant alleged arraignment in which was ly of counsel and the assistance denied rights him deprived secured thus Con- Amendment under Sixth 138 such failed to meet re- appeal and the raises evidence Because vi- stitution. quirements. judicial questions of administration

tal requiring interpreta- law the criminal judgment appeal from Drummond’s Illinois, State of 378 tion of Escobedo v. District Court’s conviction 12 L.Ed.2d U.S. S.Ct. trial are for a new denial of motion States, (1964), and Massiah v. United here. We examined consolidated L.Ed.2d resulting espionage case record in (1964), directed consideration we extraordinary care. a with life sentence banc. conviction We affirm Drummond’s motion of the charged denial the District Court’s Count 1 of indictment conclude for a trial. We conspiracy new Drummond with deliver inculpatory in this case statements to four documents national defense properly We find agents in evidence. received named of the Soviet Union vio- challenges other Espionage Act, merit in lation of the Federal ruling evidentiary charged 794(c). court’s trial U.S.C. Count 2 at- § charge. tempt such documents deliver 794(a). in violation of 18 U.S.C. § I. The Evidence trial in a mis- Drummond’s first ended jury trial when the was to reach unable tawdry The record describes scheme on In his verdict either count. second espionage period for hire. Over a trial, jury guilty found Drummond years, from five 1957 to while on charge conspiracy 1 but Count duty Navy Europe U. S. was unable to reach verdict on Count the continental United Drummond Judge Murphy District sentenced Drum- passed military classified materials imprisonment. mond to life payments in return for to Soviet taling replete $24,000. The scenario is Subsequent conviction, to his Drum- intrigue: with the cliches of international mond moved for newa trial under Fed. meetings, night chases, secret furtive grounds newly R.Crim.P. 33 on dis- surveillance, spy props.1 covered evidence showed his arrest have been in violation of the Fourth The evidence crucial to Drummond’s Constitution, Amendment to the and that largely conviction derived inculpatory items seized on arrest and following pre- own admissions arrest statements made after arrest were there- ceding trial. In late fore “tainted” and inadmissible trial. approached by agent a Soviet while Judge Murphy denied the motion. duty Navy with the United States In addition to the London. At asserted time Drummond was denial of *7 counsel, heavily debt, agent appeal exploited Drummond’s in the and from his knowledge conviction grounds raises two his of other Drummond's financial for (1) jury reversal: spy erroneously the difficulties to him as for enlist a charged respect procured with question Soviet Union. Drummond first of conspiracy Navy whether the pertained a card identification for the Soviet doc- “relating agent pounds. defense”; paid uments and was Once national committed, (2) supplied and regularly charge trial Drummond court failed jury requirements that the various Soviet contacts with classified a find- ing treason, of III, from of as set forth in documents the files Eastern Article Headquar- Section 3 of the United Atlantic and Mediterranean States Constitu- tion, Navy must in kind, be met ters of Lon- in a case of the United States way By example: 1958, May Saturday 1. fol- In on of the month on the first agent lowing from a in in the United instructions Soviet his arrival Europe, wearing link in button Drummond was directed make horsehead cuff his agents walking hole, with Avenue contact south on 7th Soviet the United and by appearing to the States at him 125th and until somone asked directions Street p.m. City Savoy 7th York Avenue New at 9 Ballroom. payment mand, special occasion, by debt, plagued he received don. On one $6,000 contact with which actively sought from his Soviet at the out contacts he grill Newport, severely purchased Embassy he a bar and and was U. R. S. S. ' agent. spe- Rhode He received second reprimanded Island. a Soviet August payment $4,000 in 1962. cial 1958, spring Drummond In the occasions, openly several Drummond On investigated by office U. S. Naval sought at contacts their out his Russian but, Intelligence, his Rus- forewarned London, inAs offices. United Nations contacts, espionage ac- halted his he sian reproached for his recklessness. he was temporarily escaped and detec- tivities began Shortly F. reas- I. he was B. surveillance tion. thereafter August signed 18, Establish- Drummond on United States. That to the day, ing agent an F. United States B. I. observed him contact with driv- ing network, espionage City toward York on New branch Soviet New entering Thruway passing York continued classified and later an Drummond apartment years. building next four His on Central Park documents Katz, intermediary September On Esther whom West. and was one Drummond travelling telephoned to contact was when he wished observed between agents. regularly Newport City. He at met Naval and New York Base Soviet September agent prearranged points photo- rendezvous the On F. B. an I. graphed agents metropolitan New York area with three one of the Soviet in the agents apartment building. Sep- Mis- same attached Soviet Soviet Between Nations, agents Mikhail tember 6 sion the United F. B. I. searched Savelev, Stepanovich Newport Vadim Vladimiro- office found Evgeni Sorokin, missing. four Mikhailovich vich classified documents On (each September known to Drummond searched Drum- Prokhorov supplied “Mike”), him with car who mond’s and discovered eleven classi- special espionage including missing documents, hol- trade: fied tools cameras, magnets, observations, four. lowed-out miniature Based on these writing charg- paper, F. materials. B. warrant flash invisible I. obtained arrest ing conspiracy Drummond com- During regul period espionage. mit lary and sold to doc removed the Soviets September from uments the classified files of the 28, 1962, On after close Caperton, repair U. under workday, S. S. F. I. two B. monitor- and, Navy Yard, May ing through Boston after Drummond’s office a closed- agent from Unit Mobile Electronics Technical circuit one device and television Newport, hiding Number located at Rhode in the of- behind a bookcase assigned Island, removing he was as a Ye pa- to which fice observed Drummond filing Class, processing pers plac- oman First file and a classified including ing carrying des classified documents those them in his case. He ignated Top “COSMIC Secret.” drove then entered car Turnpike Living and Bos- beyond legitimate earnings, Connecticut ton Post Road Larch- payments averaging to a diner Drummond received mont, delivery York, New where was met for each $500 classified docu- agent ments, repay Soviet Prokhorov another heavy per- which he used to *8 Mission to member of the the Soviet sonal debts. In November on de- 2. The ization ment the word COSMIC his consent applied and document may defined designation except by to a document subject not be as follows : * * * (b) is the is a passed to the COSMIC the marking property originator outside the signifies “COSMIC —The special that is which when of NATO the docu- classified (a) security or with organ- that The TOP SECRET.” OPNAV 05510.46 plied prepared to all classified] protection “The marking copies to documents marking alpha. for circulation procedures. outlined of TOP SECRET COSMIC will COSMIC will in graded * * within NATO. Instructions— lower not be ^[*] documents be [highly applied than ap- observing Nations. After the II. United Drummond’s Admissions minutes, three men converse for a few contention on this Drummond’s main placed F. B. on scene I. the Drum- appeal inculpatory is that his statements A car mond under arrest. search of his following preceding arrest made loaded incident the arrest disclosed a trial should not been admitted into pistol classified national number of they made at a evidence because were including documents, manuals defense deprived when he aid of time was the and maintenance of anti- installation argues, therefore, these counsel. He guided missiles, bomb submarine electric admissions were obtained in violation fuses, A identi- and aircraft bombs. list Amendment constitutional Sixth fying various was found the documents by interpreted to counsel as the Experts at trial on Prokhorov. testified Supreme in Escobedo Court v. State by (cid:127) documents could be used these Illinois and Massiah v. United States. governments develop counter hostile testimony note We first the might Ameri- measures which neutralize concerning these admissions received systems weapons can or even redirect objection in evidence without time at the destroy their courses to United States pros- of its introduction. Not until both in Information contained installations. ecution and defense had rested cases their also utilized to documents could be did Drummond’s counsel move to strike equipment modify enemy’s electronic ground the evidence on the admis- range beyond operate so it could involuntary, citing sions were the absence instruments. detection American of counsel on as a factor vol- issue Drummond took the witness stand untariness. No claim made many his own defense admitted had been denied a constitu- meetings agents. He the Soviet tional of access to counsel at acknowledged delivery of various de- questioning. time of the fense documents re- Soviet Had trial occurred subse- $20,000, turn for more insisted than but quent Supreme Court decisions in that none of the in- documents contained Escobedo, supra, Massiah under classified, formation known to him to be principles by this Court enunciated claiming they instead that he believed Indiviglio, F.2d 276 United States v. actually been declassified without pre- (2d 1965), appellant Cir. would change being papers. He raising appeal. noted on the cluded from the issue on Navy that he denied had removed from persuaded, however, We are files the found in documents his car (despite consider issue here night He the F. B. I. the his arrest. below) omissions because we would be removing admitted other documents compelled to con overturn Drummond’s Navy evening con- files earlier if viction his critical should admissions planned them to that he to use tended have been excluded. agents into his car in order lure Soviet Analysis legal problems present- to murder them. appeal ed on this is aided subdivision categories, guilty of these into four conspiracy admissions verdict jury rejected related the time circumstances count demonstrates spon- (1) were made: the incredible concoction that docu- immediately period taneous admissions ments delivered more made over during years trip F. after his arrest B. I. than four of no value to the pre-arraignment headquarters; (2) Soviets, and that the Russians were headquar- duped made F. B. I. statements at the Drummond’s machinations. morning early Judge Murphy deny- Rather, hours ters stated 1962; post-ar- ing trial, September 29, (3) appellant’s motion new raignment competent Federal *9 proof conspiracy at “more of a interviews imagine.” September and on House of Detention to would be difficult car, found in October; post-indict- fense documents early (4) and passed documents nature of the counsel’s con- ment held with interviews contacts, identity Russians, of his and the in Decem- at the Courthouse sent Federal hes- and American. Without January. both Soviet ber and n history itation, Drummond recounted Spontaneous Immediately Admissions Ex- of his association with Soviets. Following Arrest cept in dates and for minor variances arresting Immediately after meetings, account places of park Diner Drummond the Larchmont activity espionage for almost five ing p.m. September 28, lot at 11:23 given years closely paralled in later F. B. I. and Man Johnson During in- and at trial. interviews terview, however, placed nion him in their car and drove to his tes- in contrast directly headquarters to F. B. I. located frankly trial, timony ad- at Drummond at 69th Street and Third Man Avenue Russians furnished the mitted that he they hattan. After in the car for with classified documents. minutes, approximately Drummond ten spontaneously that “the best volunteered during At no time his first trial thing” “spill for him would to to do be requested did claim that he suggested the beans.” He and was denied the of counsel assistance agents proceed quickly Apartment interrogation. his second At West, 12-R at 400 Central Park in order trial, however, Drummond claimed that apprehend contacts, and Soviet during this with the initial interview bearing phone handed them card permission F. B. I. for he asked emergency contact, number Esther my phone my counsel or wife “to and wife Katz. No further occurred conversation “They and told I do it.” me couldn’t photographed car. He was got me”, continued, told “that when fingerprinted Headquarters at at about Foley Square, I to the courthouse at Special 12:25 a. m. and turned over granted opportunity to use would be Agents Palguta Gamber, who con worry.” Agent phone Pal and not to subsequent ducted interviews. guta’s interview, log detailed of the Pre-Arraignment Interview was marked for identification and Agents Palguta trial, to defense Gamber counsel at the in identified but not Drummond, evidence, Palguta themselves to troduced in revealed that it was him, m., advised not until a. accordance with 3:30 five minutes estab before procedure,3 lished headquarters F. B. I. that he did not interview at terminat ed, inquired have to make statements if that Drummond if he did he could so, anything told,” according not wish to do call his wife. “He was he said against him, Palguta’s notes, could be used “he could that he not call his informing necessary to counsel. wife After at this it was time since grounds proceed arrest, Drummond of the for his to U. S. Commissioner’s office they questioned arraignment.” him about the for naval de- Hoover, was, therefore, opportunity 3. See Oivil Liberties Law denied the I., log evidence, Enforcement: The Role of the F. B. offer the into as it undoubt edly point 37 Iowa L.Rev. would have done if the had been Ladson, raised. Cf. United States trial, Palguta (2d 1962); 4. At was shown I. the F. B. F.2d 535 Cir. United States v. log September (GX (2d 1965). Indiviglio, 29 interview 352 F.2d 276 Cir. identification) government penalizing To and confirmed avoid log, failing respond the initials on it were his. This to a contention trial pertaining permitting well as documents to other which we are raised interviews, appeal, were turned over to defense for the first time on thus disad pursuant vantaging government, to the latter’s Jencks think it we request. just power Act Since Drummond never con- fair and that we exercise our tended at trial that he had denied been to consider the exhibit marked for iden Tane, his constitutional to coun- access tification. See United States v. sel, government (2d 1964). had no reason and 329 F.2d 848 Cir. *10 arraigned agents Drummond was before a counsel.6 At this time the handed appellant United States Commissioner in the Unit- purporting a statement to in Courthouse, Foley Square, corporate writing giv ed States at the information a, m., September night by 29. 4:20 Pursuant to en him the before. Drummond 5(b), formally (a) statement, Fed.R.Crim.P. he was was asked to examine the against complaint him, any advised of desired, make corrections he (b) adopt required told that he was not if to make it it was correct. He read any statement, any (c) advised that and edited the statement from 7:15 7:38, state- by might signed ment made him then used this statement and him, (d) reciting right another advised he had a statement that he had preliminary request counsel and a initiated examina- to be interviewed by $100,000, special agents tion. Bail was fixed at further Bureau’s at proceedings postponed, and, were in de- Federal House of Detention. bail, fault of Drummond was taken to The discussion at this second interview the Federal House of Detention. centered Drummond’s Russian and on contacts, met, places they American Post-Arraignment First Interview establishing contact methods used for During September 29, the afternoon of among them. There was no evidence special agents Palguta and Gamber re any interview, that at time ceived a handwritten note from Drum interview, or in earlier or later stating, mond “I remember her name. objected any re- Drummond or showed bring Please see me. Drummond. Also being questioned at without sentment map of northern New York State. I lawyer. Indeed, the assistance of a think camp.” can locate the The note by Palguta at record indicates he was told related to Esther Katz and to an incident “Drummond, interview, the outset of the previously agents disclosed to F. B. I. in any you don’t to be interview- time want sought which Drummond had to contact you just say not ed and I will come so her. When the arrived at West back here.” Headquarters Street Detention at 7:00 Subsequent Post-Arraignment Inter- p. m., Palguta promptly asked, “Drum mond, views you attorney do have an ?” Drum no, adding mond said originated that a interviews, lieutenant at Similar at the lasting House of Detention had request refused Drummond’s telephone morning to let him use the hours, one to conducted at the four go and had him told would “he have to Federal Detention on October House of through proper put authorities to in a each 4. The commenced chit advising before he could use [it].” When session Drummond of his questioned lawyer, about this incident Drum to be silent and to consult a trial, Palguta mond’s counsel at prior stated he to each interview was interpret did he opportunity an tele- to communicate phone Indeed, remarks to mean that been re with his wife. October permission attorney.5 2, fused an contact who called was Drummond’s wife Palguta Palguta stating then advised Drummond Drummond wanted to remain silent and to consult him. no time did resist to see At Palguta’s notes, interview introduced at that he attor- effect —not was refused an trial, referring ney, probably read as follows: not have “does but he was attorney attorney; request charge an to call an lieutenant or whoever it was refused; prison AM but lieutenant lieutenant and he refused the use concluded, right, p.m.” telephone.” Palguta said Advised of [blank]. 7:05 Palguta testified, respect my these “That was not concern notes, particular that Drummond “never told me he time.” attorney.” was refused the of. Rather, Palguta, according customary procedure 6. This P. B. I. that “the lieutenant refused to let me Drummond wras in- said used on each occasion telephone, something to use the or terviewed. *11 legedly signing made in answering inadmissible admissions questions state- or interviews, lawyer. counsel was the earlier where He of a ments without the aid present. espionage willingly not the drew sketches of photo- used, he had identified devices Legal Governing Principles III. The (correcting graphs of his Soviet contacts when he first an error he had made was scope de- The and nature of a criminal pictures headquar- shown the ters), at F. B. I. fendant’s Sixth Amendment agents generally and the assisted currently preoccupies atten- to mony fullest extent. Drummond’s testi- officials, prose- tion of law enforcement unequivocally at trial established cutors, lawyers, judges, and defense cooperating that he “started with the scholars. How absolute is F. B. I. from time [he] point process at what in the criminal arrested.” utilized the intervals be- He street, squad does it attach —on in the tween interviews to additional de- recall car, stationhouse, the com- before tails agents, he to the which then volunteered mitting during detention, magistrate, or relating not es- his own circumstances, if in court? Under what many pionage years, activities over any, can are the it waived? What activity also to currently of other Soviet consequences of its denial? country. operating in this and, Obviously since we we cannot— Post-Indictment Admissions constitutionally juris- are limited in our against The indictment deciding diction con- actual cases and days was returned on October 5. Three troversies, attempt de- we should not— counsel, later, represented by retained questions cide all of these vital now. arraigned he was in the United States currently uncertainty plaguing But the Court, rep- District he was Thereafter police, prosecution and courts would court-appointed resented retained or compel us, greater seem to degree even counsel. ordinarily case, than is to ar- policies principles ticulate the basic Approximately two after the months underlie result reached here. indictment, request at the of the Govern- genius The common law lies ment, counsel, Drummond and his Wil- process of reasoned elaboration Esbitt, liam Assistant U. At- former S. torney, precedent; past explain our consented to further interviews. unless we today precision These the Federal were held at Court- decisions of with all the 11,1962 3, 4, house on January 21, today’s December command, our exactitude at During this series holdings simple will become but fiat and give Drummond was able to interviews guidelines provide for tomorrow’s will investigating agents precise more problems. concerning relationship information his Policy” Against Is a “Public There Con- places Katz and the dates and Esther ? fessions exchanges agents. with the Russian trial, At Drummond stated that he was society Primarily our because way never threatened convicting prizes other than values interviews; participation mo- his guilty, law that con it now established tivated a desire to make amends re obtained under circumstances fessions betrayed. “Any- the Government morally garded socially or indefensi thing you do,” think can said at the form the basis of criminal ble cannot interview, outset of the December 3 “tell principle dominant has convictions. The and I do it.” me will compelled man should not be been that a against will, challenge to incriminate himself to the admissibili- made taught ty and the cases have us of information in these inter- obtained essentially difference a man’s makes little whether one of absence views is brutality by physical or be broken will of counsel but rather that evidence pressures. psychological consequence more subtle of the al- was the tainted inquisitor-

Hence, privilege ment “from com officers the use seeking prove pulsory techniques ial of the Fifth self-incrimination charge against process the accused out clause Amendment the due They own were never intended have been mouth. Fourteenth Amendment discourage repeatedly to ing a defendant from volunteer- the use invoked to outlaw police complicity per- by oppressive police confessions tainted petration prohibit the recently, of a crime nor to have been behavior. More we *12 receiving acting upon taught police from and is not the constitu that this Cotter, Cal., People upon such confessions.” v. tional of confes restriction use (1965). Cal.Rptr. 622, prosecutions. 46 405 P.2d 862 sions in Cases criminal such Escobedo v. of Illinois have as State per suspect Confessions are not point— is a made it there clear se; be said cannot that an individual prosecution or not a has whether been by who has confesses deed alone formally by ar commenced indictment or unreasonably compulsion. acted or under raignment the Sixth Amendment —when experience Our leads us to believe right attaches and an entitled accused is prods often the conscience of an accused If assistance counsel. counsel Alternatively, expecta him to confess. point is denied after that has been reach investigation independent tion that will ed, subsequently confessions obtained sealing lead to evidence a conviction or must be excluded to counsel if quid pro quo calculation of a in the form given meaning respect. tois be sentence, of a lenient can motivate a But the fact that use Frequently, course of full disclosure. necessarily must confessions be restrict intelligent reasonably the case of a man particular hardly ed in instances evi Drummond, previous exposure like so to “public policy” dences a the use ciety’s religious, ethical and moral values per Indeed, of confessions se. there can cooperative response conditions a to a public policy requiring be no sound law authority. Gay with confrontation lin, Psychiatry See agencies prosecutory enforcement af Law, and the 8 Columbia prevent firmatively to or individu deter Forum, University (Spring, 1965). 25 confessing als from have en concept Prof. Kamisar has stated this gaged in unlawful conduct. Nor can “damaging thus: admissions are also the any imperative there moral that would product conscience, remorse, even cal compel society guarantee that an ac Magna Kamisar, culation.” Carta Es voluntarily cused can never contribute to says; Time, Justice in Criminal Our indeed, conviction, his own or in (U. 1965). 10 of Ya. Press exculpate suspects nocent can never them privilege promptly.7 selves against Neither point The in mind is bear self-incrimination nor the policies underlying this: the social designed affirmatively privilege against self-incrimination and encourage lips. They sealed were intend have, times, to counsel at re ed, part, protect at least in innocent quired that certain be held in confessions (as guilty) well as immoral particular admissible in criminal trials. incompatible methods, and unethical with by requires But this no means that all enforcement, which humane law act as counsel— n or confessions—with without stimuli confessions. necessarily must be excluded under regard, Supreme circumstances, In this and all or that all Court of even ad regarded unanimously pointed- California has missions of an accused be as ly “suspicious” unworthy progeny noted that Escobedo or and its somehow be restraining at aimed law lief. enforce- generally Devlin, “Stop Law, 7. See The Criminal New York’s and Frisk” 33 England (1958). (1964). Prosecution Cf. Fordham L.Rev. 211 Right Ronayne, Investigate The Bight Scope results a violation of one’s constitu- to Counsel rights guaranteed proc- ‘due tional view, This Court does not as ” Cal.Rptr. 775, 781, 406 P.2d ess.’ us, Drummond would have the absence rulings in United 61. Our own States admissions are of counsel the time (2d 1965), Cone, v. 354 F.2d 119 Cir. finding inevitably compelling a made as Robinson, United States v. 354 F.2d inadmissibility.8 are unaware of We 1965), (2d made clear that the ex- Cir. legislative any judicial mandate com or urged clusionary by appellant would rule Long pelling so extreme a rule. See compelled not Esco- be unwise U.S.App.D.C. United adopt bedo and Massiah. We decline to holdings by F.2d 549 Recent it. appeals, concededly ex other courts tending exclusionary rule re rising can see no We reason spect voluntary pre-trial utterances proportions requiring constitutional defendants, stamp criminal do per barring police se rule from a *13 made inadmissible all statements period privacy reasonable of with a rea person custody. uncounseled in Jackson sonably intelligent just man has who been 100, States, U.S.App.D.C. 119 v. United placed under arrest and advised of his concurring), (Burger, J., 136,141 (1964) 337 F.2d rights to remain silent and to counsel. 935, denied, 85 t. 380 U.S. cer “compelling necessity” prelimi of 944, 13 L.Ed.2d 822 See S.Ct. nary screening interrogation been “has Otney v. United 340 F.2d also recognized judicially justifi as sufficient (10th 1965). 703 Cir. cation, society which, ours, even in like strongly constitutionally stands com And, very in its recent decision in Peo principle persons mitted to the ac ple Price, Cal.Rptr. v. 46 P.2d cused of crime cannot be made to convict (1965), Supreme the Court of Cali of themselves out their own mouths.” explained ruling fornia its earlier Connecticut, Culombe v. 367 U.S. People Dorado, 62 A.C. 42 Cal. 1860, 1862, 81 S.Ct. 6 L.Ed.2d 1037 Rptr. 169, 361, barring 398 P.2d de the (1961) J.). (Frankfurter, among fendant’s confession because other things effectively he had not been in In United States v. Middle of formed his to counsel or re (2d ton, 1965), 344 F.2d 78 Cir. we ac main silent and had not waived these knowledged for a the need reasonable rights. process of “[D]enials due delay police can which the check out Massiah, Escobedo and Dorado are not stories of the and run down accused based on the fact that counsel was not presenting leads the accused before present suspect at the time the made in committing magistrate. delays Such can criminating statements, but on a combi help protect the as as innocent well circumstances, nation of one of which guilty. convict held in Robinson the We counsel,” Cal.Rptr. the absence of police may prelim the conduct brief 775, 780, 406 P.2d 60. The Court screening inary of an accused without interpreted holding then its in Dorado present. total of It is the “sum * * * Supreme and that of the Court Massi the circumstances apparent ah and Escobedo thus: “It is counsel,” time was without [the accused] foregoing California, the basis for the Crooker v. State prohibition 1287, 1292, 433, 440, of incrim use 2 L.Ed.2d inating police (1958), whether statements action which determines which thing say: 8. “It is one remain silent defendant’s been advised Ms lawyer illegally of a confession was the assistance because and to have coerced illiterate, rights, to see the chance unadvised and until he has had Packer, Policing incommunicado, subjected threats, lawyer held if he wants to.” beaten, quite Enough, Not or whatever. It is Nine Men Are another the Police: say: person may 4, 1965, p. Republic, Sept. who is arrested New questioned by police be until has deprivation there has been a fundamental sions made in the absence counsel. rights.9 analyzing The coercive or noncoercive In the various factual circum- context in which the admissions were stances under Drummond was in- made; e., spontaneity respon terrogated applying appropri- i. or and in statements, physi sive nature law, helpful of the ate rule of to retain will interrogation, peri cal spon- conditions (a) the distinction between: lapsing od after arrest the state before Drum- taneous admissions the time intelligence made, ments arrest; (b) were level pre-arraignment mond’s defendant, legal sophistication, statements; (c) post-arraignment in- subjective terviews; of mind and health post-indictment state (d) are all relevant to the ultimate determi sessions.

nation. We must look behind the sur formalities; guar Spontaneous

face our Admissions Constitution rights, antees fundamental not the utter admissions, first judicially-ordained ance of some shib trip from Larchmont F. B. I. car on the boleth. A decision based on constitution headquarters, unsolicited to Bureau therefore, fiat, al is not desirable meth respects in all were volunteered reaching od for an informed resolution Drummond, previous discussion pre-trial problem. access to counsel They do, however, serve has shown. precisely question This is sort of cooperate early decision to indicate his can best be answered the inves after signifi- and are of with the authorities tigative, experimental, and interest-bal assessing mind dur- his state of cance ancing legislature methods are *14 interrogation. ing subsequent periods of utilized.10 strongly suggests spontaneity His op Application Governing IV. during cooperative next Prin- attitude ciples free, in a rooted vol- to This Case several months was untary made at the time proceed decision We Drum- decide whether below, even, apprehension or as discussed questioning mond’s in such was conducted plan. pursuant predetermined to a fashion as to render inadmissible admis- problems, approach to these 9. “On first Our recent decision in United States v. (2d Hall, 1965), pro- aware that much of F.2d one becomes Cir. by analogue. people There, appellant whose an was literature written vides strong subjects very jrarsuant and views on these are arrested to a warrant Eye very perhaps headquarters. brought resent B. clear who to E. I. by complexities any approach cluttered of Hall as the witnesses’ identifications Unfortunately, virtually kingpin and uncertainties. confidence scheme problems controlling be- of crime have for ensured conviction interstate trans- agonizingly complex portation have so fraud. come of securities taken —as unnecessary many problems Voren- of the world.” We held that there no was delay arraigning Interrogation berg, and unreasonable Hall Police Detention and designed questioning Suspects: to elicit because Su- The Uncounseled “Investiga- N.Y.L.J., the location of stolen bonds. preme Court and precisely purpose tion of the de- 31, 1964, Aug. p. Col. 1. indeed, investigation not to tention here — legisla- And, Packer, urging Professor guilt, obtain evidence of Hall’s of which problem, writ- tive resolution of the has already abundance, pri- there was ten: marily to victim what he restore to the only hope “Meanwhile, we can feloniously E. taken her.” 348 carving Supreme Court will not use its 2d at 843. legislature’s knife scalpel default declare, example, Vorenberg, of Law at James Professor unqualified School, terms in which broad Harvard Law Head of Of- supporters its uncritical detractors fice of Criminal Justice within the United mistakenly already spoken, Justice, Department Re- claim it has States every person any porter Institute, crime to the American Law arrested lawyer complexities provided before with a attested to the must has any may questions.” delineating scope police him the Packer, ask issues involved supra suspect’s right at 21. note to counsel: Pre-Arraignment Statements erate with his interviewers over the next days. several that, Drummond now claims that, We held in Robinson during in the cir- preliminary interview at F. B. case, cumstances of that the accused’s headquarters morning early I. in the rights preliminary not violated September Agent Palguta 29, he asked screening interview, despite stationhouse opportunity and was refused the to call failure to advise the accused of his lawyer. both his wife and This as to remain silent or to consult counsel. sertion dur was made for the first time But here there was a clear ing notification testimony at his second rights questioning began. before Palguta trial after had left the stand. pre-arraignment interview lasted Palguta’s less log But official of the inter hours; defendant, than four who ar- view, which was marked for identifica headquarters m., rived at about 12:30 a. tion and to defense counsel ap- before the Commissioner examination, the trial for his discloses proximately During 4:30 a. m. the inter- request that a was not made until view, handcuffed, he was not and his ad- last five minutes of the interview missions were a continuation of those sought permission that Drummond begun way in the car on the to the sta- wife, lawyer. to call his not a tion. There were no untoward Escobedo plainly probative There was no sub- tactics, disintegration no of his defenses unsupported stance to Drummond’s al- deceptive under question- relentless and legation, and we no find basis in the ing psychological battering, or no atmos- ruling record for But, otherwise. even phere of isolation or incommunicado de- if requested Drummond had to call a Moreover, nothing tention. we find in- lawyer as well as his wife the time in- “spill consistent in Drummond’s desire to Palguta’s log, dicated in in the chronolo- might the beans” and wish he gy present of events here there can be expressed to contact his wife and a law- finding prejudice to Drummond. yer. In case, the circumstances of this verge being Drummond was on the pre-arraignment we hold these state- taken before the U. S. Commissioner for ments admissible. arraignment. evening Earlier *15 preliminary questioning given had been standard F. B. I. additionally justified including was warning, right advice as to his expose apprehend co-conspirators his And, to counsel. Drummond was in no gain early and to an way assessment of the comply intimidated failure to damage country’s he had done his mili alleged request with his for counsel. He tary security. espionage eases, In leads thirty-four year awas old man of reason- up immediately, must be followed or for intelligence able and undoubted crafti- eign agents, organiza warned their already ness. He had made elaborate dis- antennae, may tions’ sensitive vanish. closures to the F. B. I. of his involvement Judge aptly As Chief Lumbard so stated espionage conspiracy. with the Soviet in Cone: prepared We are not to hold that such a police “the should not be forced un- request it occurred —could vitiate —if necessarily to bear obstructions that prior disclosures, particularly these irretrievably opportunity forfeit where there had been initial notification securing information under cir- rights, proceed- of his the interview had spontaneity cumstances most fa- any prior ed for several hours without truth-telling vorable to and at a time request arraignment counsel, for may when further information be any imminent. The conclusion that re- necessary pursue investiga- quest plainly afterthought, an tion, apprehend others, pre- and to that Drummond’s earlier admissions were vent other crimes.” 354 F.2d at 126. voluntarily knowledge made with full rights, his continued, is reinforced Had Drummond asked almost-compulsive, willingness coop- beginning counsel at the of the inter- 148 right, 1019, (1938);

view he informed of that 58 S.Ct. 82 L.Ed. 1461 when was plainly States, or not indicated desire see Johnson v. United 318 F.2d 1963), (8th denied, arrived, 855 Cir. cert. 375 then to talk before counsel 474 84 S.Ct. 11 L.Ed.2d U.S. him had the refused access given (1964). principles These relentlessly, questioned him counsel and recognition of Illi in Escobedo v. State might Certainly be different. case noted ac “[t]he nois. The Court may deciding police we are not that the intelligently may, course, cused disregard lightly request to an accused’s knowingly privilege waive his during pre-arraignment consult counsel right to coun self-incrimination and questioning questioning, where the even stage pre-trial at the at a or sel either legitimately fact, motivated. In is 490 n. trial.” 378 U.S. at request denial of a to call counsel Jackson v. United at 1765. See also may, pre-arraignment interview U.S.App.D.C. 337 F.2d any circumstances, incrim other render Hayden State, (1964); v. 201 N.E.2d But, inating statements inadmissible. (Ind. 1964); Elam, State v. 263 N.C. intelligent defendant, ful an here where 237, 139 It in S.E.2d rights, ly nevertheless warned teresting moreover, note, despite strong coop clearly desire to evinced a holding in Russo United ex rel. States be disclosures erate and made elaborate (3d Jersey, of New 351 F.2d 429 v. State request counsel, fore earliest 1965), excluding all statements made Cir. comply request at that failure to with his counsel, as to the absence advice time will void the statements.11 not rights same court later ruled that such may Common nevertheless be waived. Finally, there was we believe Craig Maroney, 348 F.2d wealth rel. ex knowing clear, waiver Judge (3d 1965). Forman, who Cir. pre-arraignment during this Russo, stage interrogation. concurred in wrote: beyond clear a doubt both “It is indulge every reason Courts Craig an to have knew of his presumption against able the waiver attorney and that for consultation rights, it fundamental constitutional had to statement be knew no rights may is well that these established * * * Though police. however, waiver, A can be waived. express, proceed with- his decision validity represents if inten unfettered, intelli- out counsel was gent, relinquishment tional or abandonment * * * unequivocal. The privilege. a known or Whether * * * consti- facts of case intelligent must there has waiver been an right previously of a tute the waiver hoc, depending ad determined in each at 31. 348 F.2d secured.” *16 upon particular case the facts and cir legal surrounding event; applicable cumstances rules the the While change merely court must be mindful the accused at all times the do not because charged background, experience general espionage, con Abel v. United with alleged 219-220, States, 217, duct of the accused to have waiv 362 U.S. right. question Zerbst, the (1960), ed Johnson v. 4 L.Ed.2d 668 U.S. appeal. to Drum- States We have no occasion consider ble basis See United (2d 1965); appeal Torres, contention on F.2d Cir. mond’s further pre-arraign- Ladson, during 294 F.2d his admissions States v. United (2d 1962). ment interview have been excluded Cir. Unlike should 538-540 prin contentions, during an unreasonable where the because obtained to counsel cipal judicial post-date delay arraignment contrary Drum man- decisions McNabb-Mallory 5(a). trial, inter date of See Mal- mond’s Fed.R.Crim.P. fully lory pretation 5(a) was devel of Rule v. United appellant’s oped coun and well-known to 1 L.Ed.2d 1479 S.Ct. object ground trial moment its invocation was to at sel at the when failure this preclude point possi- required. as a suffices to

áQ1 ber 29 and October 3 and of waiver from the immedi- cannot be divorced ately preceding Drum- his indictment. nature of the is reasonable crime.12 It himself, person mond initiated these to assume interviews that a rights background prior each probably was advised of to advance interview and after the first interview consideration to the best method of ex permitted was to call tricating his wife. He was apprehended. himself if After interviewing agent, “Any told time being possession arrested classified you interviewed, you don’t to want be company documents in Russian es just say so and I will not comeback here.” pionage agents, it took him but a few “spill minutes to decide to the beans.” We are aware of Drummond’s testi mony These first disclosures were not a re September 29, that on subsequent sponse persistent questioning or, pre-arraignment in interview F. deed, questioning headquarters B. I. prior Drum kind. to the first post-arraignment voluntarily mond offered the interview information at the Feder al Detention, House of and, again, he pre-arraignment then at his twice de permission nied telephone counsel. interview. He initiated a number of in this, Based on main, appellant spent terviews thereafter and the inter urges us not to find a waiver on the recalling ludes between them details us, whole record before but to remand to might investigation. aid the At hearing. District Court for a This produced the October 2 interview would, course opinion, in our be un plan pur written which he had contrived productive. If Drummond were able to portedly past to make amends for his con point significant to some ambiguity in offering duct, a counteres serve as record, production of further evi agent pionage United States. clarify dence might be in order. sum, In coop- Drummond’s decision to But, appellant’s appellate able impetuous erate was not the result of an point reply brief, out in their the facts regretted prod- act which he later or the concerning alleged deprivation of any physical uct of or mental coercion. fully counsel were during elucidated step It initial in a well-conceived trial and are before Indeed, us. as we through plan which, it is not unreason- already Palguta’s noted, (not *17 Although Judge Murphy 12. “Mr. Justice Jackson once observed that 14. no ex- made give willing police finding plicit he would be of a when he denied waiver greater setting up in latitude roadblocks motion at the close of defense counsel’s testimony kidnapper protect to catch a his vic- the entire case to strike salvage Palguta concerning tim than ‘to a few bottles of bour- Agents Mannion and ” bottlegger.’ Packer, bon and catch a interviews, as well as written supra, note 8. given by Drummond, an im- statements finding 5, supra. plicit of waiver can be inferred. 13. See note principally testimony they may pro- of Drummond concrete situations often remanding himself, purpose precisely protection we see no in vide the same which hearing. precisely for a can be the same waived way. evening September 29th, finding On the Sep- A the statements of Drummond could have refused talk to tember 29th were inadmissible would be Agents Palguta; particularly disingenuous. Gamber would It will be re- protected sought have been in such a refusal called that Drummond this inter- the Fifth and Sixth But Amendments. important view to fill in some of the most rights speak, un- gaps when he did elect to his prior disclosures agents; der both Amendments were waived. We he had remembered the name of ignore proud key Drummond’s ac- cannot a American contact and was anxious knowledgment trial “start- at the that he to reveal it. When received cooperating government] ed requesting meeting, [with his note and ex- plaining them, arrested,” the time [he] what he wanted to tell they cooperate that he repeatedly continued to “from knew that he had been September 28, including up to and advised of his to consult counsel and January night privilege only Sep- 1963.” On stand mute —not committing 29th, freely tember Drummond F. B. I. but stated magistrate writing arraignment. “requested that he had to be in- Under these they circumstances, And, terviewed.” Gov’t Ex. there- would re- have been my they part proposed after “as miss their duties had met not government” cooperation a de- Drummond and with discovered the additional plan pursuant provide. tailed information he wanted to To to which he would government paraphrase counterespio- Jackson, they as a Justice serve dealing nage agent. espionage, merely case, with and not The record of this short, clearly “a few bottles of bourbon.” unmistakably creates picture of a man who was so, question Even their first to Drum- willing picture but anxious to talk —a mond concerned not his American con- wholly at odds with the tact, scene station- attorney. but whether he had an badgering house formed back- accept When Drummond —even if we drop completed for Escobedo. The mosa- explained yet that he had not version — ic is consistent with Drummond’s conces- opportunity been to consult trial, sion at the “I had told again counsel, they informed him that * * * cooperate that I wanted to attorney he had a to an and to re- happy would be more than it if do questions. fuse to answer their Drum- it was to benefit the United States Gov- only response mond’s co- continued ernment.” operation; read, signed edited and written version of his earlier disclosures Nor Drummond, is it material participated in the further discus- Gamber, Palguta Judge Murphy may sought. sions which he had have been unaware of the existence of prepared Danny We are not hold that Escobedo at the time made willingness go “spill respective their decisions. The crucial ing the beans” was a waiver of fact is some that Drummond knew he had rights but not may others. The Fifth to counsel. That he gained may designed and Sixth knowledge Amendments from the F. B. I. protect quite different Supreme values but rather than from the Court * * * App. See Gov’t at 496a-501a. It is rea court [formulate] a deci * * * sonable to power assume that Johnson v. Zerbst sion appellate within the long dealing and the line of cases court to formulate.” E.S. O. v. Chenery Corp., waiver were known to him. Cf. United Winfield, (2d 454, 459, (1943); States v. 1965). 341 F.2d 70 Cir. 87 L.Ed. 626 see Fas Supreme event, In Esperdy, (2d Court silis v. 1962). F.2d Cir. long ago made clear “fi]t would be *18 wasteful to send a case back to a lower

151 Charge Jury scarcely The can be determinative. See Peo- Stewart, Cal.Rptr. ple 43 v. A.C. con 794 forbids U.S.C. § (1965); People v. Math- 400 P.2d “relating spiracy information to transmit (1965). Cal.Rptr. 785, is, P.2d 65 govern The to the national defense.” acknowledges Post-Indictment Statements for the that it was ment jury de the documents to decide whether The court finds that the admis conspired to transmit were fendant by appellant sions made the De such a character. Gorin v. United January cember and interviews were 19, 31-32, States, 312 U.S. 61 S.Ct. properly introduced at trial. These state (1941). 85 L.Ed. 488 It seems likewise only ments were elicited after Drummond agreed finding jury’s be the lawyer given and his had conferred and mainly depended on its assess this issue interrogation, their consent to thus viti light ment, instructions in the the ating any only reliance on Massiah. The court, of to it the trial six argument urges appellant now for their allegedly found defendant’s documents in inadmissibility is that should re be car at time of his arrest. garded as the tainted fruit of earlier in Having admissible statements. held the Defendant claims that the trial admissible, earlier statements we obvi “relating court defined information ously reject this contention. only the national availability defense” terms of its But, assuming arguendo public, and not some of the earlier statements were bar terms of its contents as well. On the red, post-indictment charged contrary, jury, admissions could the trial court way generic be considered tainted. Two “The term ‘national defense’ is passed full months between concept referring two series connotation broad Although of interviews. only military, Drummond was not naval and air es jail during interval, he consulted tablishments but to all related activities freely with his counsel and his wife. of national defense.” Gorin Unit See alleged The earlier taint could not 19, 28, ed product marred the fruitful of Drum addition, In the trial court told cooperation. mond’s continued jury, deciding issue, you “in documents, should examine the and also by Appellant V. Other Issues Raised testimony of consider the witnesses who appeal argued originally This testified as to their content and their significance panel composed Judges before a pur and who described the Waterman, Smith, and Anderson. With pose and the the informa use which respect remaining to the issues raised on put.” could tion contained therein unanimously adopt appeal, we ample. Such instructions more than portions thorough relevant opinion draft Judge Waterman, circulated argues Defendant trial that the disposed which he of the contentions sub- jury court instructed the on this issue stantially as follows. attempt in relation to count Defendant attacks his the indictment conviction on and not in relation to the grounds two presented conspiracy However, other count as below. well. charged He claims jury prove that the trial court trial court did that to tell jury erroneously government conspiracy, on the issue of had to show: conspiracy pertained “(2) knowingly whether the to docu- That Drummond asso “relating ments conspiracy ciated national himself with the defense.” and its including He also purposes, delivery claims that criminal evidence failed requirement meet prohibited relating finding documents treason, as set forth in national the Constitution, defense to the Union Treason Soviet ”* * * Clause of the phrase United States “documents relat ing charge and that the trial court failed to to the national defense” recurred jury requirements. points conspiracy on these several other *19 152 charge Moreover, erroneously jury trial court failed to

instructions. already charged jury adequately evidentiary requirement. attempt in relation to the on this issue “Congress It is true that jury count, that a and we are satisfied dispense the two-witness [cannot] with incorporated ordinary of wit could merely by giving another rule [treason] charge by reference. States, 325 name.” Cramer v. United Defendant also contends that 45, 918, 940, 65 L.Ed. U.S. S.Ct. 89 permitted improperly trial court (1945). 1441 is also settled But it jury to view four the documents with incorporate ele an offense must all obliterating belittling or out first legend the ments of treason in order for the two- them “This which each of bore: apply. witness United States v. rule affecting material information contains (2d Rosenberg, 610-611 195 F.2d States, the national defense the United Cir.), denied, 838, 73 S.Ct. cert. 344 U.S. meaning Espionage within (1952). L.Ed. The Treason 97 687 USC, Laws, 793 and Title Sections requires act with Clause that an accused ” * * * proper However, 794 it was intent aid our enemies. Cramer v. legend rel it was to retain this because hand, States, supra. On the other United question defendant evant to the whether only requires that an U.S.C. § conspired to the information transmit in accused transmit information “with reason believe” that “with intent or or to be tent reason to believe that it is foreign country help a hurt our or would injury or the United used to the States nation, requires. as U.S.C. 794 also § advantage foreign nation.” to the of a States, 712, 721 Gorin v. United 111 F.2d great very may not The differences (9th 1940), aff'd, 19, 61 Cir. believe, intent and reason to between 85 L.Ed. 488 More S.Ct. injuring country and aid or between ing our legend over, prevent prejudic Supreme our But the adversaries. ing jury deter defendant’s regards plainly Court them sufficient docu mination on the character of the inapplicable, rule to make the two-witness jury, ments, the trial court warned the States, supra, Cramer v. United document relates “Whether 53, 65 at 45 and n. S.Ct. U.S. the national defense the United States forerunner to 18 U.S.C. 794 it cited the § you question to decide. is a of fact for affecting example our as an of a crime question It is not a of how merely security national is not which marked.” Accordingly, treason another name. unnecessary consider an we find it The Treason Clause urged gov additional distinction III, Article 3 of the Section United ernment, an Union is not the Soviet part provides: States Constitution in meaning “enemy” Trea of the within the “Treason the United shall son Clause. United v. Rosen See States * * * adhering consist Enemies, giving to their berg, supra, 195 F.2d at 610-611.15 Aid them and Comfort. that, No Person of Treason shall be convicted contends irre Defendant Testimony statutory unless on spective of two Witness- definition Act, es to the prosecuted, same overt or on the crime for Confes- open actually sion in Court.” Defendant con- he was indicted and convicted was, effect, tends that he convicted of for treason. He on the fact that relies giving' enemies; charged aid and comfort to our the indictment him “intent government prove did not and reason to the docu believe” injury testimony overt act of treason ments would be used “to witnesses; advantage two and that the trial court the United States merit, government argues argument Although 15. The also has some evidentiary requirements validity. Treason there is no need to examine its Clause were satisfied at defendant’s trial. *20 meaning Repub- “newly the Union of Soviet Socialist discovered” within charged 33, lics.” arrest Even if the indictment of Fed.R.Crim.P. and that his alleged- regard requires, a more than the statute boon was lawful without right, ly pointed to which defendant can claim tainted warrant. As we out rightly the trial court instructed above in connection with defendant’s jury, government claim, “the does have reluctant to counsel arewe injure prove imprisoned the intent was a life a that both to see man for as advantage spy arguably the United States and to because of ob- evidence The reads in the Soviet Union. statute in an manner. tained unconstitutional Consequently, pass alternative.” same instruction we shall over might question in relation to the statu- be defendant’s evidence whether tory requirement pro- “newly of “intent or reason to and shall was discovered” directly believe.” claim. ceed to the merits fact Defendant also on the relies I. F. B. have statu that, jury weeks after the verdict tory authority felony to make arrests just prior sentencing, the trial without a “if the facts and cir warrant implied court that he was “a traitor a cumstances known to warrant [them] single country.” fail see how a We believing prudent man in that the offense long unemphatic remark, made after the Henry has v. United been committed.” commendably a of in end of trial free 168, S.Ct. flammatory rhetoric, the fun could alter (1959). Here, 4 L.Ed.2d crime for damental character of the arresting knew, from their officers own jury had defenda convicted those of their fellow observations and nt.16 agents, taken classi that defendant had office after fied documents from his Trial Motion New for shortly day; was closed motion for new trial was Defendant’s a prear to a thereafter he had driven allegations un- based on his car was ranged meeting in an with two Soviets lawfully September searched on out-of-the-way spot; had that he he had not discovered this fact conversed of the Soviets there one until after his trial. Defendant contend- facts satis minutes. These several furnished ed fruits of the search that the statutory fied the and constitutional principal warrant basis for the arrest a war standards for an arrest without September issued on charge conspiracy to commit rant on a Fourth arrest therefore violated espionage. Con- Amendment of the United States docu- stitution. He asserted that contends that be Defendant time at the ments and other items seized clearance, top no ad secret cause he subsequent arrest, and all of his reasonably have could verse conclusions incriminating the F. B. I. statements to took that he the fact been drawn from agents, excluded from should have been with him. home classified documents unlawful of an evidence as fruits job might re so if defendant’s This arrest. study quired informa classified him denying duties, In defendant’s motion for but his tion at his leisure Judge filing trial, Murphy processing such new assumed that confined to unlawful, September contends the search on also Defendant information. sight hearing so that there no need for lost F. B. I. that because the point. ruled, hours He one-half the alterna- of him for about two and tive, documents, no connec- defendant’s evidence was not after he took hroad, perilous 16. The is not used to word “traitor” is a loose and It in these times. general applied who, term treasonous act de- one with- the technical connote authority, out transmits information con- fined in the Constitution. cerning particularly the National defense— reasonably grateful Marden, tion could have been drawn We are to Orison S. prear- associates, between that occurrence and his and to his Charles Nelson ranged meeting Jr., Knake, with the Soviets. We P. Brower and K. Konrad assigned disagree, having who, counsel, represent- in mind the fact warrant, defendant, appeal, for a arrest without ed lawful with skill guilt required fidelity. to establish “[e]vidence necessary.” is not Ibid. Defendant also *21 Judgment of conviction affirmed. argues grounds that for the reasonable lacking arrest were because defendant LUMBARD, J., MOORE, C. conversing, merely and the Soviets were HAYS, FRIENDLY concur. having passed no documents between ignores fact argument, them. This FRIENDLY, Judge (concur- conspir- Circuit for defendant was arrested ring) acy espionage commit : and not for offense.

substantive contentions Two Drummond’s as inculpatory use of statements war- argues Finally, defendant rant additional comment. grounds, these even if otherwise suffi sought justify a cient an arrest without war The first is his claim that he alleged illegal rant, lawyer telephone were tainted his wife and his ity early 1962, September morning September 29, search of his car on 9, beginning because it was the success of that at interview at agents headquarters, search which the F. caused B. I. F. B. I. refused and was put Agent Palguta- permission request defendant under close surveillance. —a contrary, by September says On the 9 the F. B. made which Government was already defendant, only coming I. had his Soviet co- the interview when was conspirators, and his office under a close. As understand scru a result of the learned, having tiny. Moreover, findings able lack of due to this quite apart search, pre-Escobedo trial, a from that defend been cannot we building visiting Judge apartment rejected Murphy ant was an know whether resided, testimony concerning in which two Soviets and that Drummond’s missing request unworthy four classified documents were time of the be (They lief, from judge office. defendant’s also as the have been en would sufficiently suspicious were rebutting of defendant titled to do even without evi car.) that, to search his are satisfied We dence, Dyer 265, MacDougall, v. 201 F.2d allegedly even without unlawful (2 1952), 269 Cir. Drummond or believed search, have, the F. B. I. would inculpatory but considered statements intensified their watch on defendant’s every nevertheless, admissible as almost office, as well as on defendant and thought one at the time. would co-conspirators, September up from 9 on the first there would be Since view evening until the of his arrest. There legal raises issue whereas the second evening fore, their observations on that problems difficulty, pre of some I would obtained, “by exploitation not hearing appeal pending fer to hold this a [alleged] illegality,” “by means finding by judge simple on this distinguishable sufficiently purged to be might point fact, eliminate all Wong [alleged] primary of the taint.” legal any questions 488, illuminate would Sun v. United 407, 417, (1963). 441 v. 9 L.Ed.2d remained.1 Cf. United States hearing ought 1. At such a the Government would in fairness we to foreclose the surely Palguta’s Agent log, showing presenting offer such evidence Government request deciding retrial, that Drummond’s made a see before to order interview, opinion, fn. 4 to the court’s at the end of I am not and would Palguta possibly properly consider call other witnesses. that we can convinced Agreeing my offered, with brother Kaufman that never even an exhibit

155 (2 Santore, 67-68 Cir. all. nub of v. 290 F.2d Escobedo State Illinois, 1959), denied, U.S. 12 cert. 81 S. U.S. S.Ct. (1964), L.Ed.2d 5 L.Ed.2d is that when Ct. legitimate investigative purpose is nom- majority a assembled cannot be Since compared inal as the desire to ex- that, course, pur for I think statement, question- inculpatory tract accept poses appeal, Drum I must of this ing procure no dif- a confession stands facts, un mond’s however version ferently police than before station may doing, join likely be. So magistrate; guaran- in order for the affirmance, for reasons similar to those Counsel to be tee of the Assistance of expressed my in United concurrence truly meaningful, extend it must (2 Cone, Cir. 354 F.2d 129 States penumbral “criminal zone before 1965). The three-hour'non-coercive in begun suspect prosecution” has terrogation F. B. I. formally “accused.” Unless the has been early morning headquarters *22 way “penumbra” extends all September 29 essential the in arrest, point Court in of which the vestigation conspiracy placing the of a society way held, the interests of must be country’s very peril. It was existence beginning the investi- dominant at the of find, imperative F. for the B. I. to gative process, just of as the interests involved, quickly, to find who what prevail end. future “accused” at the damage done, had been and what counter girl’s saving kidnapped If the need for a measures must be taken to disaster. avert justified life a failure to warn of Nothing language pur in the or known rights to remain silent and to pose of the clause Assistance of Counsel counsel, Chief Justice assistance of as suggests of the in Sixth Amendment an Traynor rightly People v. so held in police tention the founders Modesto, Cal.Rptr. 417, 42 398 P.2d give man, properly must a arrested for protection (1965), nation af- 753 of the crime, family such a immediate access briefly justification equal forded may and counsel —with the risk this postponing counsel Drummond’s access to delay meaningful prevent any or even in Moreover, if assume here. even we quiry participants plot or alert other in a telephone request Drummond made the Neither, the nation’s existence. did, not make when he said he he did despite the statement in Massiah Unit v. granting condition of it was a clear that 201, 206-207, ed 84 377 U.S. S.Ct. willingness to talk. 1199, 12 (1964), quite L.Ed.2d 246 on the subject post-indictment different of in post-arraignment interview on the The terrogation, would I evening 29, construe the Amend September forms of early requiring that, ment as my at this subject of brothers of the dissents stage, agents government may reject Anderson, an stands on Waterman and request only a legal under access to counsel entirely At basis. different penalty foregoing anything use of period had a constitutional suspect thereafter counsel, said or its de to the assistance “fruits.” the time of his trial cisions available at my plain. For Ala reasons indicated in concur- made Hamilton v. State of 157, Cone, supra, bama, rence in L.Ed. United States v. 368 U.S. 7 S.Ct. Mary (1961); do not read the 2d 114 v. Assistance of Counsel White State land, speak- clause of the 10 L. Sixth Amendment as U.S. S.Ct. ing stage investigative truly (1963).2 to such at Ed.2d 193 Here too we would though Although distinguished failure to offer it was ex- Hamilton could he Judge argued cusable. It would he not to create on the Anderson’s better basis problems, dissent, further under Pointer State fn. cannot be. White Texas, arraignment “critical” since there was not (1965), hearing change guilty 13 L.Ed.2d which a White was allowed Judge readily Murphy plea; yet before held that what he could so Court avoid. said at that time the assistance without explicit finding from sent be assisted an convic- affirmance argument tion, agreed judge, heard the heard oral the trial who saw and that, giving interpretation present witnesses, on the record made before decided, instance we have these the events. But in this two- eases were the teach- ings very likely precluded more all we ever of Massiah and Escobedo evidence — and, appellant an affirmance had been can since the because have— rights arraignment deprived rightfully time his under after was clear trial, panel opinion, properly A assume the the U. Constitution. we can S. judge authored, operative Drummond had which I was satisfied that never forego because elected to it. Drummond of the decision of the full court solicited the with the F. I. to consider the B. case in banc. interview agents; whether when asked him majority court, Now a of the full sit- attorney, responded had an ting banc, affirm defendant’s proceeded to historical reference conviction. After careful deliberation read, sign and to edit and the statement respectful my consideration of broth- carry them, on further discussions with beliefs, ers’ I have concluded despite warning explicit all an ago panel result reached several months lawyer. to consult If there remains the recon- result that can be ambiguity situation, judge’s opinion Supreme ciled with resolution of the Government’s pur- Court Escobedo. No constructive surely my clearly pose favor by appending was not erroneous.3 would be served

lengthy opinion ma- as a dissent to the *23 jority opinion Judge in WATERMAN, of the court banc. Nev- (dis- Circuit ertheless, important senting) it is to restate in : smaller fashion what was said several I dissent. ago protection on months the issue of the present The defendant in the case was by of afforded Drummond the assistance tried and convicted in the summer of of counsel clause the Amendment Sixth prior 1963 to the decisions of the United during interrogation place the that took Supreme States Court in Massiah v. at the House Detention on the Federal States, 201, United 377 84 U.S. S.Ct. evening 29, 1962, September on and 1199, (1964) 12 L.Ed.2d 246 and Esco- the further issue whether Drummond’s Illinois, 478, bedo v. State of 84 U.S. interrogation conduct 1758, S.Ct. His L.Ed.2d 977 protection. “waived” this appeal pending from the conviction was when panel these cases In were decided. the We of the erstwhile Drummond court, spring unanimously of 1965 a then, division of this con concluded and we consisting judges believe, of the three who dis- tinue to that Drummond was against interrogation by of counsel could Mm. not be used afforded the self-in- And, quite apart light Indeed, from the later shed crimination clause of the Fifth. by States, 201, post-arraignment questioning Massiah v. United to the here 1199, (1964), issue, 84 S.Ct. 12 L.Ed.2d 246 at Massiah v. United there could be no real doubt that these U.S. 84 S.Ct. L.Ed.2d 246 applied (1964), already decisions to out-of-court inter- made that clear. The rogation arraigned prisoner by poses intelligent prisoner of an the case he an—of police prosecutor. who, arraignment, repeatedly or after de- but, thorough mands counsel after warn- Although contrary argument ing, questions could be to answer continues —would one; on presumably constructed basis Court’s be a difficult the criti- effectively listing police “the have not cal issue would be it made whether was right warned him of his absolute constitutional clear that he had the to consult right silent,” remain answering 378 U.S. at counsel before rather than lat- factor, very as a critical I er. But statement indicates agree Judge likely arise; with Waterman that the Sixth that such a case is too not right recognized judge thinking Amendment in Escobedo and the was warranted in goes beyond protection respect presented with here. majority’s opinion, counsel dur entitled to the assistance of insofar as it interrogation Palguta

ing agents by interrogation relates ning eve- evening Septem September expressed and on the Gamber is in enjoy not, fact, waiver, actuality ber he did in when terms of but in it rests recog Furthermore, extremely reading that assistance. on an we restrictive then, now, Supreme opinion nized do Court Escobedo. requested permission clearly approach em This restrictive most telephone Judge ployees by of the Government disclosed Kaufman’s statement lawyer occasions, on at least three Fifth and Sixth Amendments “[t]he requests designed may that his each time refused: were protect quite differ- first, during the initial interview they ent values situations concrete early morning 29;1 September sec may provide precisely pro- often the same ond, * Federal Court * while he at the deny tection not now do morning awaiting house later protection that in cases some afford- appearance the U. Commission before S. by may ed an accused examination; third, er for his initial by be no broader than that afforded after he had been locked in the Federal privilege self-incrimination; appear House of Detention after is, keep silent. But the when, ance. We also noted that on the suggest majority errs when that in evening September 29, the F. I.B. present protection case the conferred told the defendant explicated Sixth Amendment as opportunity had been denied the earli day er counsel, they Escobedo was identical that con- obtain shrugged any responsibility off to assist ferred the Fifth Amendment. Finally, recognized then, him.2 we regulat changed If Escobedo the law now, dowe that after Drummond’s re ing admissibility the out-of-court quests to reach counsel had been thrice inculpatory accused, statements of damaging denied he made several admis that, decision must mean at least in some sions, signed interrogation, police a written version of an ac instances of questioned inculpatory cused has not to be statements had made *24 a the of counsel in addition to absence night before. And we went on to right silent, police to remain and that characterize Drummond’s conduct at this right respect pre a for the former is juncture “patently voluntary.” as We admissibility condition at of in of trial not, however, easy equation could an find Compare culpatory statements. Esco voluntary between admis Illinois, bedo of U.S. v. State evening sions September on the of 29 and (1964) S.Ct. 12 L.Ed.2d 977 with by constitutionally waiver him of his California, of Crooker v. State protected right time, to at counsel that 1287, 2 L.Ed.2d 1448 request inasmuch he as continued to ac Rights Friendly Bill The of See requests cess to counsel were re Procedure, as a of Code Criminal peatedly denied. remain of the We same (1965). And one Calif.L.Rev. belief. surely be such must when the instance 1. agents Palguta The factual circumstances Drummond’s that he told and Gamber request repeatedly sought opportunity first are unclear. to an present posture case, Given he contact counsel and each time had been agree Friendly Judge I one must with that the rebuffed. If Drummond assumed accept Drummond’s version of the facts op- agents him F. portunity I. would an B. allow request. relating to this before to consult with counsel they proceeded interrogate him to he cer- majority pretend 2. The Drummond tainly prior have tale of again would believed that his did not ask for counsel to by interrogation evening Sep- frustration would be understood on the of' request disagree. opportunity I tember asked 29. When as a an to attorney whether had an Drummond consult with counsel. repeatedly requests oppor- present accused hold further that would case counsel; just extent, tunity for the is such a case. To to consult with at suggests very repeated least, requests fact Escobedo must read as over- be ruling California, assistance, accused, is that the Crooker v. State without right right preserve supra. scope silent unable to to be to counsel interroga- suggest may uncertain, sophisticated in the face of still be to police. techniques explicated tion Sixth Amendment as by Escobedo did not confer on Drum- has, course, that the It claimed been right questioned in mond the not to be explicated by the Sixth Amendment as requested the absence of counsel when he decision in Escobedo con of the Court right counsel, re- in addition to the to right if fers no such “extra” to counsel silent, “particularly main seems to me interrogators effectively ac warn the disingenuous.” right cused of his to remain silent.3 In present question the F. B. did warn the case I. come of whether thus right right accused had both to re that he Drummond the “extra” af- waived right Amendment, main seek ad silent and the Sixth as later forded explicated began ques by Escobedo, ques- of counsel before vice to be evening September tion him on the in the absence of counsel. Two tioned slightly might argued grounds support after It therefore be its different finding appear Drummond had re been to have been warned of waiver maining protection majority. was that afforded Neither advanced against self-incrimination; privilege persuasive. right is, that argument might This to remain silent. First, argued it is because Drum- persuasive in the case voluntary inculpatory mond made several intelligent reasonably of a who is accused statements to the B. I. immedi- F. adequately to re warned he has the ately arrested, and after he was volun- main silent and to seek the advice tarily inculpatory disclosed other facts Drummond, who, counsel and unlike interrogation preliminary implement makes no right. latter effort headquarters F. B. I. he for the before argument per The same is not requested counsel, first time these volun- reasonably suasive in the case of a in tary utterances waived Sixth telligent adequately accused who is might had. Amendment warned he remain silent has the argument ignores the Of course this counsel, seek the advice early volun- critical tary of these fact that all repeatedly requests, who prior admissions made did, that he be allowed to consult repeated requests first of Drummond’s counsel in an to avail himself of effort opportunity and, for an to contact counsel *25 right. say that To case that in the latter previously stated, as I have these it was ac Sixth Amendment on the confers repeated gave requests Drummond that protection cused no more does the than right the Sixth Amendment to be not deny Fifth Esco Amendment is to that questioned in the absence of counsel. any very bedo case has relevance prior Drummond’s admissions to the time vigorously repeated requests which an accused seeks may of his be ad- well trial, repeatedly. missible him If at his but the counsel and is rebuffed hardly fact he that said them can con- apply Escobedo does not in such a case that, right stitute an advance waiver of a may any one well ask if it has relevance case, on the facts of at that was not prior at all. I would hold that when to time available to him which arose vigor interrogation, police, a an accused after the admissions made. had been ously opportunity seeks consult to argued Second, counsel, requires he Escobedo that it is that Drummond opportunity voluntarily inculpatory I afforded to do so. be made later state- (1965).

3. Note: 53 Calif.L.Rev. during Zerbst, interrogation (1962); on the ments 70 458, Johnson v. evening September 82 L.Ed. 1461 29 and these any enough admissions constitute a waiver There will be to consider time right The ma- an intentional Sixth Amendment he had. what constitutes waiver right jority questioned ab- tells us that if Drummond wished the not to be presented protection avail afford- to himself of the sence of counsel when we are involving post-Escobedo ed with a a Amendment he should case Sixth interrogation prop- have refused talk of an accused who is Gamber Palguta. right erly apprised if The short answer to this that such a is seen, position that, is as we he to exert it. have chooses Drummond Sixth Amendment afforded finally I come consider whether right in addition to Fifth Amendment inculpatory Drummond’s utterance of right remain not silent the further regarded can a statements be as waiver questioned to be of coun- the absence right mat- Amendment his Sixth as surely justify The its sel. court cannot that, maintain ter law. demonstra- talking assumption that Drummond regarded. bly, they be es- cannot so The waiving right the former intended tablished rationale the constitutional And, to waive latter as I as well. right to counsel is that this “extra” con- subsequently point out, shall if the Sixth protection stitutional is sometimes essen- right questioned Amendment not to be right tial if the accused’s constitutional in the absence of tois meaning. who, is to have silence One meaning, real utterance of in- requesting repeatedly after access culpatory admissions those cir- under finding repeatedly counsel and setting cumstances and in cannot be that right paid requests, attention is to his con- a waiver of that a matter fesses, may effectively waived law. right constitutional to maintain silence right surely has waived his extra portion majority’s opinion breaking to have counsel’s advice before suggests intended that, hold he silence. To here because protec- to waive his Sixth Amendment regardless talked, Drummond, ex- interrogation tion on the eve- pressed wishes, waived his Amend- Sixth ning September especially 29 is right right ment is to eliminate that alto- interrogation strained. When oc- that, gether under circumstances —and curred Escobedo had not been decided. clearly right establish that the is indeed Therefore, though even Drummond was right, separate and under circum- “right warned of his to counsel” at the being accused, stances con- where interrogation quite start of this is arrest, pro- fined and under needed the unlikely quick that he understood this most. We de- tection the need not now phrase signify pleased if he cide would constitute an effective what lawyer. was entitled at once to talk with right waiver of an accused’s to counsel give required isOne Drummond the ac- once has attached and the doubt, benefit and to hold that steps protected', taken cused has thereby. to be did not waive his “extra” Sixth Amend- ultimately held to. Whatever is ment because he con- would not such; constitute an accused in waiver sciously willingly have surrendered Escobedo, circumstances, it clear if questioned *26 not to be in the significance, any independent tois have absence of counsel if known he had on by making inculpatory of the statements evening September the of what Esco- 29 sought oppor- an an accused after has subsequently apparent. bedo Unit- made pre- tunity to reach counsel and has been Fay, ed States ex rel. Noia F.2d v. 300 constitute, doing so cannot vented from 345, (2 1962), 351 Cir. on aff’d other it. grounds, 391, 822, 372 U.S. 9 L. S.Ct. (1963). Camley Ed.2d 837 See v. Coch- new I reverse and remand for a would statements; ran, inculpatory 369 U.S. 8 L.Ed.2d the S.Ct. trial at which given during early morning, Drummond the eve- to elicited from that sustain a ning interrogation September 29, was, by evening, of conviction. It that cer- tainly general longer inquiry from evidence. would excluded into definitely unsolved crime had subsequent in- Drummond’s Whether upon focused as a Drummond self-con- culpatory not also then statements should Although fessed accused. the Govern- upon depend it be excluded will whether urges process ment continued of that the develop trial should at that that interrogation purpose for the as- was of compul- independently of the certaining espionage scope the of the ac- by September sion 29 state- activated the tivity security national interests of ments. great and while to a extent un- was doubtedly so, the Judge evidence obtained in SMITH, (dissenting): Circuit interrogation the was used at Drum- agree generally I with the dissent. I mond's trial to him. All the convict of Judge Waterman, dissenting opinion of elements on which Escobedo was based except not make inci- I would the present are in Drummond’s case it as interrogated right dence not to be of the evening September stood depend on a re- in absence of counsel 29th, 1962, exception with of the my quest. reasons set forth in For the fact that Drummond was warned his Robinson, v. dissents in United States rights Fifth and Amendment Sixth Cone, 354 F.2d 115 and United v. States Escobedo not. it is not was But reason- since, 354 F.2d I would hold that suppose Supreme able to Court after state- volunteered holding intended Escobedo night agents Septem- ments to the single apply would not if that factor were investigation fully ber missing, where, here, particularly him, upon focused the trial use Drummond had made clear it that he him of results of his further interro- wanted to retain counsel. Drummond gation according him his without Sixth testified he tried three times to right error Amendment to counsel was get lawyer represent agree touch with a to I under the Escobedo case. Judge Judge Anderson him. Waterman Once end toward the of the first basis in agents there is no sound the record interview with the at about 3:30 finding construct a this court m., September says a. 29th he he asked waiver Drummond of his lawyer. this, to call his wife and As counsel. I reverse trial. would new Agent Palguta’s log notes his disclose that Drummond asked to call his wife Judge ANDERSON, (dissent- Circuit but was he was refused because about ing) : to be taken before the Commissioner. holding ma- dissent from the of the again Drummond claims that he asked interroga- jority Drummond, at his lawyer, call a while he at the Court- Agents Palguta tion F. B. I. arraignment. house, just before his first Gamber, p. and 9:30 m. between 7 This *27 confession, nothing enough cern of his at that time and did oral in Drummond’s opportunity agents; to to afford Drummond the ment and that af- Drummond’s telephone. use a firmative to disclose all efforts he knew undeniably they voluntary so that majority spe- opinion The does not operated complete waiver, as a not cifically deny Drummond’s concede or rights of all Sixth Amendment that right that to the assistance of counsel at had, Drummond then knew he that but stage investigation, of under the any might which be discovered in the holding inter- in Escobedo. It avoids an future, holding through as occurred pretation application of to and that case in Escobedo. case, present of the does the facts and distinguish fully attempt not to The it. difficulty theory with the waiver “ * * * grant majority do that beginning interroga is that request denial of a counsel to call by evening tion on the of may, pre-arraignment in oth- interview September 29th, Drummond made it ex circumstances, er render incriminat- pressly lawyer, clear that he wanted ing They then statements inadmissible.” and at time then or did thereafter he go say that the “other circum- to say imply or he didn’t want one. It absence those stances” would be the that, spite having is in true one not present facts case which present, on, Drummond went without intelligent are: he is “an defend- hesitancy objection, answering ques or ant, rights fully warned of his agents.1 [who] by might tions While this strong clearly de- nevertheless evinced a against right constitute waiver of his co-operate sire to and made elaborate self-incrimination, cannot be taken request for before disclosures his earliest right a waiver of a to counsel face ** But is tanta- express he declaration that wanted saying plain- mount an accused if majority accepted, counsel. The note the ly emphatically Fifth waives his legal basic, requirements for waiver: right against Amendment self-incrimina- validity only repre it can have if it tion, thereby, ipso facto, his waives relinquishment an sents intentional or right Sixth assistance Amendment privi abandonment known or of a proposition of counsel —a which un- lege; intelligently it must be done tenable on its face. knowingly; indulge courts every presumption reasonable concluding In that Drummond was waiver fundamental constitutional deprived of his Sixth Amendment rights. Zerbst, Johnson 304 U.S. v. counsel, majority’s principal reli- (1938); 58 S.Ct. 82 L.Ed. 1461 theory upon ance is In waiver. Carnley Cochran, 506, 516, effect, saying that, pursuit are (1962) 8 L.Ed.2d 70 thought-out carefully plan of a showing requires a that an accused was mitigate disaster, own to avoid or at least intelligently offered counsel and that he punishment, by pretending offer; rejected engaged understandingly private effort, in a and harmless Illinois, supra. patriotic citizen, spies, trap as a Escobedo v. State Soviet They find by overwhelming all ful of these conditions driven emo- compulsion all, post-warning voluntary tional filled to tell dis insistently cooperative with Govern- closure Drummond of in- additional It brought agents’ should be noted that Drummond’s mes- tion were out sage agents, asking interrogation making them to see of him the most September 29th, simply opportunity him on the visit afforded give Though apparently them name Esther Katz them. answered previous willingly, whom he had referred he did not beckon the statements, purpose insisting upon giving name he whose had then recollect, been unable and also to show them this information. These additional map place thought precisely them on a where he circumstances disclose the kind incriminating camp was located. The of situation which Escobedo holds the gave necessarily statements which Drummond in addi- to counsel attaches. *28 162

criminating Judge cogently eve As Kaufman stated statements the so 29th, case, ning September spite pre-Escobedo in a United of recent but clearly LaVallee, 2 assertion that rel. Durocher v. enunciated States ex lawyer. Cir., 303, (1964), a With this conclusion 330 F.2d 310 wanted disagree. Moreover, it far is must allege here, “Where, petitioners as how, present of from record clear on the they that right of their were unaware case, said have the Drummond could be to counsel, to that were nev- right relinquished a to the assist known advised, that, fact, er and so day Sep counsel the 29th ance of tember, 1962, on of recognize Supreme did Court not a one knew when no such right convic- their until after their right existed Escobedo decision until the finding tions, a of waiver would .2 22, pending a on 1964 As this is June border on the fanciful.” appli does not a retroactive case it seek may is While said case it this be holding. cation of the Escobedo distinguishable was because Drummond right Perhaps counsel, not what done or done facts was advised to express compelling all concerned with Drummond’s here are more even because September 29th, 1962, on to have counsel—a desire Drummond said wanted which lawyer, including combination places circumstances a Drummond’s failure finding present waiver in the confessing having on one insist before case, stands, in the as the record now further, explained by no is the fact that realm of the fantastic. right recognized on such was or known Obviously the trial never had an court meant, date; and what the opportunity and evaluate the evidence thought, and Drummond was that what might such conclusions factual as it have lawyer for he was entitled the formal light The reached in the of Escobedo. proceedings for not in- court but Government in its brief concedes that vestigative regarded stage, once he was incomplete purpose of record passing upon Perhaps “an is all accused.” the issue of waiver. asking for, but, from case to the should therefore remanded us, would be record before reasonable finding ruling trial court for a one presume to consult that he wanted concludes this matter. If court below asking In for one. time he right at the that Drummond did not waive event, position is in court inter- of counsel at the assistance p. September say. view from to 9:30 m. on 7 my view, Drummond was taken before the United differ which 2. I must with the early suggests Friendly hours States in Ms concur Commissioner brother required evening 29th, Sep September ring opinion, that, by he was not any plea anything did occur enter nor at 29th a had tember might proceedings indicate that down in Ham which under laid tached the rule fact, stage.” Alabama, 52, In a “critical reached ilton v. State hearing happened 157, (1961), be- all at the brief 7 L.Ed.2d 114 which 82 S.Ct. interrogation, preceded fore that bail was the Commissioner was Drummond’s postponed Maryland, fixed a date for the hear- 373 v. State of U.S. White (1963), ing Hamilton White were was set. 10 L.Ed.2d 193 83 S.Ct. finding totally upon absent based In Hamilton which followed it. White initial, attached, simply incon- circumstances to counsel brought incomplete arraignment be clusive because defendants case, namely “Only presence magistrate .arraignment, fore a required this ac- of counsel could enabled laws state rather because the plea all the defenses available at cused to know the ar the accused enter a intelligently.” plead stage raignment to him and to it “a critical made 159; proceeding.” at at U.S. U.S. 82 S.Ct. Hamilton v. at in a criminal Alabama, supra, 1050. Therefore 368 U.S. at State Mary 157; of counsel assistance State of at White S.Ct. 29, 1962, depends evening Sepetmber land, supra, 373 U.S. at S.Ct. holding solely though upon present case, in Escobedo. In the even *29 29th, 1962, then Drummond entitled court would

to a new trial. The trial pass upon issue of waiver also have to alleged

as it concerned Drummond’s re- m.,

quest call at about 3:30 a. agree September 29th. with the ma-

jority found Drum- that even the trier if story true, all his oral mond’s

admissions, thereto, prior made would

not be rendered inadmissible. America,

UNITED STATES of Appellee, Price,

Lavone CURRIE and Leonard Defendants-Appellants.

No. Docket 29059. Appeals States Court of

United

Second Circuit.

Argued 1965. June Dec.

Decided notes assume, hoped judi- able to to achieve Palguta’s to be confused log, see leniency. fully cial Drummond was in- relating 4) note to this interview were every formed of his to counsel at during introduced into evidence his cross- interview. To hold in these circum- examination and have been considered stances that the admissions were uncon- question.13 us on this The trial record stitutionally extracted from him would amply finding warrants a that Drum achieving to mock the court’s role in right might mond waived whatever the just society’s rights balance between oretically abridged by have been in those the accused. Indeed, cident. Drummond’s conduct in Post-Arraignment Interviews proceeding enthusiastically and exhaus tively Palguta disclose further de We hold that Drummond al espionage tails about his activities re so waived his to counsel post-arraignment veals that his belated claims lack subs interviews light evidence, Septem- Federal House Detention on tance.14 In all the

Notes

not corroborated notes following September 29, 1962, initial his again agents. attempted Drummond arraignment States before United lawyer to call a return after his Commissioner, waived Detention, House of the officials of counsel. assistance charge permission him refused do so. surrounding p. evening interview, this At 7:05 m. circumstances holding interrogation bring when it within the warned counsel, Supreme he told Court Escobedo day Illinois, thwarted efforts earlier in to call State of S.Ct. Palguta’s lawyer. log The Gov- reflects this as 12 L.Ed.2d 977 majority ample hand evi- stated footnote five had in ernment agent opinion, corpus but the felt was no con- dence to establish delicti